Author Topic: So maybe settled precedent is not so settled  (Read 1732 times)

MillCreek

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So maybe settled precedent is not so settled
« on: May 25, 2014, 11:15:46 AM »
http://www.nytimes.com/2014/05/25/us/final-word-on-us-law-isnt-supreme-court-keeps-editing.html?hp&_r=0

I have certainly known that appellate court decisions can be revised to correct typo and grammatical errors, but I was unaware that SCOTUS has been making substantive changes and burying the change logs.  This was not covered in my Con Law classes.
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Perd Hapley

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Re: So maybe settled precedent is not so settled
« Reply #1 on: May 25, 2014, 11:22:31 AM »
I'll not hold my breath on the lot of them being impeached for such shenanigans.
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roo_ster

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Re: So maybe settled precedent is not so settled
« Reply #2 on: May 25, 2014, 12:30:06 PM »
Tell me again how a citizen is supposed to obey law and avoid the hammer of the state when the law changes in secret?

There is no way one can be "law abiding" given the multiplicity of laws, the editing after the fact by judges, new law made by the executive, and the corpus of secret law that has been classified. 

All this law has made our government...lawless.  I thing the term "anarcho-tyranny" applies.

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Kingcreek

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Re: So maybe settled precedent is not so settled
« Reply #3 on: May 25, 2014, 12:46:53 PM »
Obama supposedly taught con law. Mebbe he could splain it to us.
What we have here is failure to communicate.

T.O.M.

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Re: So maybe settled precedent is not so settled
« Reply #4 on: May 26, 2014, 01:02:27 PM »
It appears that the Justices have corrected errors of fact or law.  The article indicates that the law has not changed because of the editing.  I have done this in my decisions before.  Not a big deal, as long as the changes don't alter the overall decision.
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MillCreek

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Re: So maybe settled precedent is not so settled
« Reply #5 on: May 26, 2014, 01:14:55 PM »
Eh, I am not so certain, Chris.  The Harvard Law Review article (https://www.documentcloud.org/documents/1165284-lazarusrichardthenonfinalityofsupremecourtopinions.html) linked in the NYT article makes for some interesting reading.  The overall decision may not be changed, but some of the reasoning or facts behind the decision can be changed, which can cause some angst when applying the decision to future legal analysis. 
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MillCreek
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Quote from: Angel Eyes on August 09, 2018, 01:56:15 AM
You are one lousy risk manager.

Perd Hapley

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Re: So maybe settled precedent is not so settled
« Reply #6 on: May 26, 2014, 08:46:02 PM »
It appears that the Justices have corrected errors of fact or law.  The article indicates that the law has not changed because of the editing.  I have done this in my decisions before.  Not a big deal, as long as the changes don't alter the overall decision.


What do you think would be the reason for doing this without any disclosure? Shouldn't there be some kind of notification?
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T.O.M.

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Re: So maybe settled precedent is not so settled
« Reply #7 on: May 27, 2014, 10:10:57 AM »
First, Millcreek, I'll try to find time to read the law review article.  It may have more insight on the subject and the impacts.  I can see how changing the reasoning behind a decision may be important in trying to apply the law.  Lord knows how often I've cited to SCOTUS opinions, and I should only assume that the quotes are still accurate.  I wonder though, without reading the law review,  how a justice would react if a previously printed quote was offered in support of a position?  Does the Justice try to deny ever writing the original, explain why a change was made, or take the easy way out, say "that's not the law" and not discuss it any further.

Fist, can't guarantee anything, but in every court I've practiced in, any revised decisions or orders are distributed among the parties.  I'm assuming that is done here. I'm thinking that there isn't as much attention paid as with the original opinion, because the revisions aren't as news worthy, especially in this day and age where half of the people reading the stories are only looking for the American Idol vote count, and could care less if a Justice changed an opinion...
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fifth_column

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Re: So maybe settled precedent is not so settled
« Reply #8 on: May 27, 2014, 12:27:40 PM »
Tell me again how a citizen is supposed to obey law and avoid the hammer of the state when the law changes in secret?

There is no way one can be "law abiding" given the multiplicity of laws, the editing after the fact by judges, new law made by the executive, and the corpus of secret law that has been classified. 

All this law has made our government...lawless.  I thing the term "anarcho-tyranny" applies.



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RevDisk

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Re: So maybe settled precedent is not so settled
« Reply #9 on: May 27, 2014, 12:46:45 PM »

IMHO, there should be an easy to use and access repository for all bills, laws, declarations, notices, et al. Plus the Federal Register. It should contain full version tracking. It should be given full legal standing to be used as a reference. (ie if you follow what it says, you're good to go even if someone put up wrong info). It should have APIs to facilitate change notification and whatnot.

This is not rocket surgery. Any half-way decent wiki has this functionality, let alone content management systems like Sharepoint.
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T.O.M.

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Re: So maybe settled precedent is not so settled
« Reply #10 on: May 27, 2014, 01:28:17 PM »
Statutory law is easy.  No need for daily updates. Any changes are made in advance of the effective dates.  Lots of free cites.  Many of these are more up to date than the books I have here at my desk.

Case law is harder, since there are decisions made daily.  There are paid services (Westlaw, Lexis/Nexis, CaseMaker) that do daily updates, and also allow for case tracking in terms of when changes are made, if decisions are upheld, followed, or overturned.  I haven't found a free version that is updated as frequently...
No, I'm not mtnbkr.  ;)

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KD5NRH

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Re: So maybe settled precedent is not so settled
« Reply #11 on: May 27, 2014, 01:51:16 PM »
Case law is harder, since there are decisions made daily.  There are paid services (Westlaw, Lexis/Nexis, CaseMaker) that do daily updates, and also allow for case tracking in terms of when changes are made, if decisions are upheld, followed, or overturned.  I haven't found a free version that is updated as frequently...

There's a solution to a lot of problems; figure out how many decisions are overturned annually simply because the original judge is a blooming idiot, then divide the cost of a Lexis/Nexis account for every citizen by that number, and make it a fine for issuing a stupid opinion. 

T.O.M.

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Re: So maybe settled precedent is not so settled
« Reply #12 on: May 27, 2014, 02:03:47 PM »
I know that, around here at least, having cases reversed by the Court of Appeals is a big issue, especially if it is something that is plain error by the trial judge.  It's a motivator to make sure things happen right.  I've heard several judges say (back when I was a trial attorney), that they weren't going to decide a certain way on an issue because they didn't want to get reversed. 
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Balog

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Re: So maybe settled precedent is not so settled
« Reply #13 on: May 28, 2014, 12:46:26 AM »
So John Roberts can fix the whole "Obamacare is a tax is you squint right" error?  >:D
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TommyGunn

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Re: So maybe settled precedent is not so settled
« Reply #14 on: May 28, 2014, 11:56:58 AM »
So John Roberts can fix the whole "Obamacare is a tax is you squint right" error?  >:D

No, not really.   
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Balog

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Re: So maybe settled precedent is not so settled
« Reply #15 on: May 28, 2014, 11:59:17 AM »
Quote from: French G.
I was always pleasant, friendly and within arm's reach of a gun.

Quote from: Standing Wolf
If government is the answer, it must have been a really, really, really stupid question.